With Terrorism, Defense Lawyers Walk Tightrope

April 16, 2001|By Alan Feuer, New York Times News Service.

NEW YORK — Seven years have gone by, but Robert Precht still has nightmares about the World Trade Center trial.

Precht was a defense lawyer in the landmark terrorism case. His client was convicted, and there are times when he dreams of being back in the Old Federal Courthouse in Manhattan, defending himself to the Arab community or arguing with the judge.

He still thinks about the trial all the time--the ethical puzzles, the difficult legal strategies, the work.

"I felt like I had been through the emotional wringer," Precht last week said of the trial, which ended in 1994. "It wasn't just a trial for the defendants; it was for the American public. And when you have those ingredients, a trial is lifted above the facts. It becomes a symbolic drama."

As the defense team in the U.S. Embassy bombings trial prepare to open its case Monday, the lawyers clearly are facing what their peers consider to be a legal nightmare.

The dozen or so lawyers defending the four men accused of plotting to destroy the U.S. Embassies in Kenya and Tanzania in 1998 face a daunting task. Murderers single out people, but terrorists take aim at countries, their policies, their systems of belief.

How is it, then, that a defense lawyer--raised in America and shaped by its mores--can represent people accused of attacking America itself?

While none of the defense lawyers would comment on that question amid a trial, other lawyers who worked on similar cases explained that a delicate legal calculus is needed to represent those accused of terrorism.

They said the defense lawyers in the embassy bombings trial must respect their clients' political beliefs, though they may not endorse them. They said the lawyers need not share their clients' views but need to communicate them skillfully to the jury.

"You don't become an advocate for the political views of your client," said Richard Burr, a lawyer for Timothy McVeigh, who is to be executed next month for the Oklahoma City bombing in 1995. "You become an advocate for understanding the political views of your client."

The embassy bombings trial, in which four men--Wadih El-Hage, Khalfan Khamis Mohamed, Mohammed Saddiq Odeh and Mohamed Rashed Daoud Al-'Owhali--have been charged with joining Osama bin Laden in an international terrorist conspiracy that led to attacks killing more than 200 people, is much like the World Trade Center case, Precht said. Both, he said, highlight "a clash of systems."

"The trial suddenly assumed this symbolic dimension that was beyond the guilt or innocence of the individual defendants," he added.

To counter the image of the scheming terrorist, Precht said he tried to convince the jury that his client, Mohammed A. Salameh, was duped by the plot's mastermind, Ramzi Ahmed Yousef, who was convicted at a later trial.

"It was ludicrous to argue to the jury that my client was not present during key stages during the conspiracy," Precht said. "So I basically conceded the conspiracy existed but said that Salameh was not criminally responsible because he had been kept in the dark about its consequences."

This strategy seems likely to be used in the defense of Mohamed, whose lawyers already have admitted that he ground the TNT for the bomb that destroyed the embassy in Tanzania, killing a dozen people. His lawyers, however, drew a crucial distinction in their opening statement, saying that Mohamed had committed an evil act but was not an evil man.

Because Mohamed has essentially conceded his guilt in hopes of winning the mercy of the jury in the penalty phase, one of his lawyers, death penalty specialist David Ruhnke, is likely to play a prominent role as the trial focuses on the question of whether Mohamed should be executed. Ruhnke is a genial and patrician lawyer who would not seem out of place hanging his shingle on a quiet lane of some quaint New England town.

Another strategy used at previous terrorism trials was to explain to the jury why men might be driven to blow up embassies or office towers like the Oklahoma City federal building.

Burr said he tried to communicate McVeigh's motives to the jury as best he could, giving political context to what simply seemed a cold-blooded act. He said the same could be done in the embassy bombings trial.

"Nobody's saying, `Let's join the jihad,' " Burr said. "They're saying, `Let's understand what role that we play in fueling the jihad.' "

Al-'Owhali's lawyers have tried something akin to this as they, too, look ahead to the trial's penalty phase.

During a hearing two weeks ago, David Baugh, one of Al-'Owhali's lawyers, argued that his client should not be executed for using a bomb to kill innocent civilians, beause in the deadly game of terrorism and counterterrorism, weapons of mass destruction are routinely used.